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Above the Law, Under the Sheets

Undercover cops can't legally have sex with prostitutes, but they get awfully close

AP Photo/LM Otero

Last spring, a police sergeant in Arkansas's second-biggest city, Fort Smith, noticed an affidavit that a colleague had submitted after making a prostitution arrest. The document states that the suspect met the cop at a motel, where she advised him to "get comfortable" (i.e., strip). She accepted $150 from him, then rubbed his back and chest with lotion for a half-hour before, in the words of the affidavit, "she began rubbing lotion on my penis and masturbating me." The undercover cop then identified himself and arrested her for prostitution.

Sgt. Don Paul Bales had received the affidavit via a cell phone photo sent by another officer. It bothered Bales such that he showed it to his supervisor, complaining that it described a violation of department policy against sex while on duty. This triggered a series of events that, in part because Bales was already engaged in a whistleblower suit against the department, may have compromised the undercover officer's identity and led to the department's firing Bales.

The scant news coverage focused on Bales's firing and the unnamed officer's "sex act." There was no scrutiny, though, of the legality of such acts. Are cops legally allowed to buy sex?

Not in Arkansas, nor any other U.S. state—except one.

I got a crash course in the subject last spring when covering the fight in Hawaii to scrap their exemption allowing on-duty police to have sex with prostitutes. To my knowledge, Michigan is the only state in the country where that's still legally permissable. (During my reporting last year, I reached out to other Associated Press statehouse bureaus to crowd-source that determination; separately, a prostitution researcher I'd called for information came to the same finding.) Bridgette Carr, the director of the Human Trafficking Clinic at the University of Michigan Law School, tells me the clinic is drafting language suitable for a bill on the matter, with hopes that a lawmaker will take it up this year. As Michigan's 2015 legislative session revs up, lawmakers ought to shed their ignominious distinction as the only state that allows cops to have sex with prostitutes, even if (or perhaps because) departments tend to set their own boundaries with this sort of thing.

Honolulu police testified to a House committee last year that the old Hawaii exemption was necessary for their jobs—not because police were, in fact, having sex with prostitutes, they said, but because writing such restrictions into law provided instructions for pimps and prostitutes to smoke out undercover cops. The premise, called "cop-checking," is that if a prostitute knows police are forbidden from sex, he or she could initiate it to determine whether the person is a client or a cop. The scenario is the stuff of pulp novels: Not a cop, eh? Prove it.

Law enforcement experts I found, including one who trains California police departments in best practices and a former FBI agent who investigated sex crimes in Las Vegas for more than 20 years, called this reasoning absurd. Not only does it fundamentally misapprehend how most survival prostitutes operate, it's far, far more than is necessary to secure an arrest. The three basic components to make such an arrest are: Agreeing that there will be sex; agreeing that there will be payment; and making some motion toward making that happen. That is, you gotta get up from the bar stool and start walking to your hotel room, or tug down a zipper. These rules will vary somewhat (an offer, even with coded language, may be considered enough) but the criminal offense does not require that anyone actually engage in sex, or even go near it.

That sensitive approach is consistent with a policing strategy that treats prostitutes less as nefarious criminals and more like potential survivors of trauma or human trafficking. Under any rubric, it's obvious why policing and sex don't mix. Setting aside obvious health concerns, cops and perps already have a drastic imbalance of power. Adding sex to the equation invites coercion and rape. Vice cops could trade sex for non-arrests. Or cops could select women, have sex with them, and make an arrest to justify the encounter. "We know of many, many cases where police are having sex with prostitutes in order to control them," says Kathleen Barry, a prostitution researcher and author, and Penn State University professor emeritus. "It might be a kind of thing where, 'You turn over for me and I won't arrest you tonight.' I started doing research on this issue back in the '70s and that, we know, has been going on all along."

To their credit, Honolulu police later came to their senses and supported revoking the exemption.

There's no evidence that the officer in the Arkansas situation abused his power in the way Barry describes, but it underlines the danger of that scenario. Arrest reports from the past few years describe Fort Smith officers pushing the line of good discretion and often crossing it.

On May 6, 2014, an officer used to arrange for sex with a woman (who also worked at Western Sizzlin, the report states); she was arrested only after she straddled the cop on a couch and nuzzled her bare breasts into his face. February 19, a cop arranged to meet a woman at her house; she was arrested once she had put his hands on her ass and bare breast and, in the cop's account, "undid my pants and removed my penis." Another prostitute who had identified herself in an ad as a "sexy transsexual" was arrested only after she had pulled a cop's pants down and fondled him. In July, a woman advertising herself as 19 years old was arrested only after she started putting a condom on a naked officer, assuring him she was capable because she had been "doing this for two years." A couple of times, women were arrested during nude massages that had taken a sexual turn.

Bales's attorney, Matthew Campbell, says Fort Smith vice officers appear to enjoy their work too much. In a phone conversation with me, he compared their practice to "window shopping" for attractive women to bust. He has rankled the department with a long critique of its methods on his blog.

Department spokesman Sgt. Daniel Grubbs contends his department is operating within the difficult ethical boundaries of split-second undercover policing, and is responding to the community's desire to see these arrests made. In the case that Bales found shady, Grubbs told me, the woman's cover as a masseuse forced his officer to gather evidence beyond the usual. "She went through the whole bells and whistles [of the massage]. Whenever she grabbed his privates, that's when he arrested her," he said. "To me, it's common sense. We're not having intercourse and we're not having oral sex. Those tiny cases of minor fondling or grabbing depends on the ruse this criminal is potentially putting themselves under." Undercover operations advance only under a supervisor's strict scrutiny, Grubbs said, adding that the aforementioned arrests all have been reviewed and found to be within the department's boundaries.

Many arrests were far less lurid. Cops routinely busted johns, for instance, after mere verbal exchanges. In 2011, a man driving a car agreed to pay an undercover cop $30 for a blowjob; that arrest was made as soon as the guy drove to a hotel where the cop suggested they meet. Another cop posing as a prostitute met a guy in a van behind a convenience store in 2012. They agreed to a $20 blowjob, and he told her to hop in. She left as if to get her purse, and police rolled up to arrest him on charges of solicitation. A man who posted a help-wanted sign in his front window for a cook and housekeeper—specifying "Freaks Apply Only"—agreed to pay $25 for mutual oral sex when an undercover officer visited to ask about the gig. She left, saying she would return; instead, he was arrested.

Would-be sex buyers make easier targets than many sellers. "If you have the mentality to [pay for sex], you are just not going to be remotely cautious about it," Grubbs said. Working prostitutes are also more sophisticated about dodging arrest than johns. The arrest reports are full of banter in which the parties mutually ask whether the other is a cop. The women tend not to discuss sex explicitly, leaving the quid pro quo vague. Payments are termed "donations," or dollar amounts are expressed in "roses." One arrestee told an officer how upset she was because a friend had told her that during a bust, cops weren't legally allowed to buy alcohol, undress, or lie about being a cop—all misconceptions, she was informed back at the station.

Barry calls such examples instructive. Not only is arresting buyers easier, cleaner, and less ethically fraught than arresting prostitutes, it's also effective at deterring the entire enterprise. "Arrest the customers," she said. "That will stop it in an instant. Customers disappear really quickly. And so will trafficking. It is not worth it for traffickers to traffic women if there are no customers." If a goal of vice policing is to protect women from violence and coercion, starving the market of buyers seems a better if more quotidian use of resources than handcuffing and jailing half-naked women.